The Burlington Airpark’s appeal of the City of Burlington’s 2016 court win and and $118,000 cost award – at the Ontario Court of Appeal on Tuesday March 28th at Osgoode Hall, 130 Queen St. West in Toronto
For further information on this important and ongoing legal battle over the City’s right to enforce it’s Site Alteration Bylaw on Airpark property after a 5 year, unregulated fill operation, please refer to the City of Burlington’s Airpark information page:http://www.burlington.ca/…/your-city/Burlington-Executive-A…

On Friday June 30th, after a nearly 9 month reserve of Judgement, Justice J. Gibson of the Ontario Superior Court released his decision on the City of Burlington v. Burlington Airpark Inc…. the third decision from an Ontario Court, and the third win for the City since 2013.

As the City had requested in this and all its former suits since 2013, Justice Gibson ruled that the Airpark must file a Site Alteration Permit with the municipality, and must do so by August 31st of this year. The Justice also ordered the Airpark to pay the City’s legal costs, and noted that “I do not discern that there is any significant difference in the argument advanced by Airpark in this matter from those it advanced in the previous (suit).”

The Justice also found that the “Airpark has indeed been conducting a commercial landfill business on airport land”, not all of which was required for its as-yet-unrealized airpark improvements.

Local residents and the RBGC have been advocating for fill quality testing since 2013 and the Justice agreed the there was “certainly cause for concern,” on the subject of fill contamination, “particularly on the part of the residents of the surrounding area down-gradient from the Airport who rely on wells for potable water.”

The City argued that there was evidence of fill contamination including from petroleum hydrocarbons, heavy metals, polycyclic aromatic hydrocarbons and even a risk of cyanide contamination, and that there were and are risks to human health and ecological receptors. The City of Burlington will now have an opportunity to assess soil quality on the Airpark property as part of its Site Alteration Permit process.

The RBGC will be advocating for the Airpark to complete a full Record of Site Condition so that the City and residents can gain a full and complete understanding of any contaminants present on the site, their location, concentrations and ability to migrate through surface water, groundwater or as airborne pollutants. Once fill quality throughout the site is known, the RBGC will advocate for remediation and or removal of contaminated fill and restoration of damaged neighbouring properties.

The full decision, expected at some point to be available on the CanLii website, is a public document:

In April 2015, the City of Burlington commenced another application with the Ontario Superior Court of Justice against the Burlington Airpark seeking an order to remove all fill deposited on the Airpark site between 2008 and 2013. The application was heard by Justice Gibson on November 10th 2015 and we await the decision; expected by the end of April.

This application follows two previous court decisions in favour of the City’s right to enforce its site alteration bylaws at the Airpark site (November 2013 and June 2014) as well as multiple reports of contamination on the site, including several reports by Terrapex Environmental for the City of Burlington and a June 2015 report by Pinchin (Site Specific Risk Assessment) prepared for the Airpark’s legal council.

Terrapex has called the Airpark an “unlicensed waste disposal facility on the basis that it has accepted CONTAMINATED soil“, and Pinchin concluded that “…there is a risk to human health in the event of direct contact with metals and PAH’s in soil and also indicated potential ecological risks due to metals, PHC and inorganic concentrations in Site soil…”

Meanwhile, back at the MOECC, the Airpark quietly submitted an Environmental Compliance proposal under a numbered company with a Mississauga address. The time for public comment had almost lapsed unnoticed when a local resident flagged the application and alerted the City and Conservation Halton who had both missed notifications on the environmental registry due to the unknown company and address. The City did some legal research and found “that the numbered company was in fact amalgamated with the Burlington Airpark Inc on January 1, 2007…”. The City further took the position that “the application has been made by a defunct corporation which cannot have legal responsibility for the proposed works…”, and that the “proponents name as posted on the EBR is misleading…”. To read the City’s letter to the MOECC regarding the application, click here.

The Airpark has since resubmitted the application under Burlington Airpark Inc., EBR Registry #012-6693. Comments and submissions regarding the application may now be made until May 14th, 2016, which will hopefully be well after a decision from the Ontario Court of Justice.

The Conservative Government’s omnibus budget bill, bill C-43, has received Royal Assent.

Division 2 of Part 4 of the bill amends the Aeronautics Act to authorize the Minister of Transport to make an order, and the Governor in Council to make regulations, that prohibit the development or expansion of or any change to the operation of an aerodrome. It also amends the Act to authorize the Governor in Council to make regulations in respect of consultations by the proponents and operators of aerodromes.

The RBGC addressed the Senate Transportation and Communication Committee regarding this amendment to the act. We look forward to the implementation of regulations that will include a robust and meaningful consultation process that engages local residents and governments in any proposed development, expansion or change in operation of an aerodrome; and where development is socially or environmentally damaging, we look forward to the Minister intervening in the public’s interest.

On December 1, 2014, the Ontario government introduced a bill that will enable Ontario residents to participate in public debates without fear of being slapped with a lawsuit.

Thanks to the Ontario government citizens will be able to participate in public debates without fear of being slapped with a lawsuit. Strategic Lawsuits Against Public Participation (SLAPP’s) silence public debate and put a chill on free speech. Bill 83 (Protection of Public Participation Act)was poised to pass in the Ontario legislature before the provincial election. Yesterday, it was re-introduced as Bill 52. The new bill promises to reduce the number of frivolous lawsuits without unduly restricting legitimate legal action.

Participating in public debates and speaking out on issues that affect us and our neighbours, these are basic principles in our democracy. Too many Ontario residents have already suffered damaging and frivolous lawsuits, simply because they opposed development proposals or industry activities in their communities.

Unfortunately, SLAPP suits seem to be becoming more frequent, with more developers and corporations using these lawsuits as a shady tactic to intimidate and silence people. And they work. How many of us would keep opposing an issue when faced with a lawsuit?

In absence of legislation, the attacks keep coming. In Burlington, Ont., members of the Rural Burlington Greenbelt Coalition were slapped with a frivolous defamation claim for challenging massive fill dumping at a local airport in the Greenbelt. In North Dumfries, Ont., the Concerned Residents of North Dumfries (CRAND) face a $220,000 cost award from a gravel company for participating in a two day OMB hearing.

This proposed law is good for Ontario and good for democracy. It should receive widespread support from all political parties. We congratulate the Ontario government on stepping up to table to put an end to SLAPP suits.

Last night, Councillors John Taylor (Ward 3) and Marianne Meed Ward (Ward 2) championed a Council Resolution that outlined the need for Anti-SLAPP legislation in the Province of Ontario. It asked that “The City of Burlington advise the newly elected Premier…and its local (MPPs) of its support for the Protection of Public Participation Act 2014 (Bill 83) and request that the Bill be reintroduced forthwith in the Legislature;”. It further requested that Mayor Goldring meet with Burlington’s new MPPs about this issue, and that the Association of Municipalities of Ontario be requested to support the resolution as well.

Councillor’s Taylor and Meed Ward, Mayor Goldring and City Manager Pat Moyle all spoke eloquently in support of the resolution, and in support of the defendants of the Airpark libel suit. The resolution then passed unanimously in a recorded vote.

Thank you to all members of Council and City Staff who have sent an important message to Ottawa and Queen’s Park and to our City’s own advocacy community; that our City values public participation, public dialogue and the debate that informs not just policy decisions, but our quality of life.

PROTECTION OF PUBLIC PARTICIPATION ACT, 2014 (Bill 83)

COUNCIL RESOLUTION, June 30th, 2014

WHEREAS Bill 83, Protection of Public Participation Act, 2014 being “An Act to amend the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers of Procedure Act in order to protect expression on matters of public interest” was introduced into the Provincial Legislature in June 2013;

WHEREAS Bill 83 was introduced by the government out of concern that Strategic Lawsuits Against Public Participation (SLAPP), being lawsuits brought before the court by one party against another party or individual as a tactic for silencing or intimidating the other party, are having a chilling effect on public participation on contentious matters of public interest in Ontario;

WHEREAS Bill 83 is intended to protect persons from being subjected to legal proceedings that would stifle their ability to speak out on public issues or promote, in the public interest, action by the public or any level of government;

WHEREAS the ability to engage in public participation forums is the foundation of a democratic society;

WHEREAS there exist a number of high profile environmental issues in the City of Burlington that are of public interest and that have generated a great deal of debate in the community;

WHEREAS City Council is of the opinion that public participation in matters of public interest ought to be encouraged and not discouraged through tactics such as strategic lawsuits against public participation;

WHEREAS provision is made in Bill 83 to amend the Courts of Justice Act for such SLAPP legal proceeding to be dismissed at an early stage and for defendants subjected to such proceedings to be indemnified for incurred costs in such proceedings with the potential for additional damages to be awarded in appropriate circumstances;

WHEREAS provision is made in Bill 83 to amend the Libel and Slander Act to state that any qualified privilege that applies in respect of an oral or written communication on a matter of public interest between two or more persons who have a direct interest in the matter applies regardless of whether the communication is witnessed or reported on by media representatives or other persons;

WHEREAS provision is made in Bill 83 to amend the Statutory Powers Procedure Act to provide that submissions for a costs order in a proceeding must be made in writing, unless the tribunal determines that to do so is likely to cause a party to the proceeding significant prejudice;

THEREFORE BE IT RESOLVED THAT the Council of the City of Burlington advise the newly elected Premier of the Province of Ontario, the Honorable Kathleen Wynne and its local members of Provincial Legislative Assembly of its support for the Protection of Public Participation Act, 2014 (Bill 83) and request that the Bill be re-introduced forthwith in the Legislature;

THAT Mayor Goldring be requested to meet with Burlington’s newly elected Member of Provincial Parliament, Eleanor McMahon to encourage the Province to re-introduce the anti-SLAPP legislation; and

THAT the Association of Municipalities of Ontario be requested to support this resolution.

On behalf of the residents of rural north Burlington, the members of the Rural Burlington Greenbelt Coalition and I would like to congratulate you on your enormous victory at the Ontario Court of Appeal. Thank you and City Staff for all your work and leadership on this precedent-setting case.

Because of your commitment to protect our rural north and its protected countryside, the City of Burlington now stands as an example to other Ontario communities dealing with airpark fill operations.

The summary nature of the Appeal Court’s dismissal was, for our community, both gladdening and concerning.

Gladdening because the City was so clearly vindicated and can now proceed to test and control fill quality on Airpark property through its Site Alteration bylaw, protecting our lands and water table from environmental damage. Concerning because it affirmed our beliefs that the Burlington Airpark and its legal team are unreasonably litigious.

Our community continues to be under serious threat from the Burlington Airpark, this time through the use of Ontario’s onerous defamation laws against local advocates. Their counsel, Brian Rogers, a leading libel lawyer and member of the Attorney General’s Anti-SLAPP Advisory Panel, intends to defend them on the basis this lawsuit is no more than a SLAPP suit (Strategic Litigation Against Public Participation). In short, it is another legal action, without merit, brought to intimidate, silence and exhaust – both emotionally and financially – its opponents.

Burlington’s strong and vocal advocates and citizen groups play a critical role in protecting our environment, social justice and quality of life. The ‘libel chill’ that could result from the Airpark’s SLAPP suit, and the damage it could cause the targeted defendants put that critical public engagement in jeopardy.

So, while we are elated with the decision of the Ontario Court of Appeal today, and grateful for the City’s commitment to environmental protection, we need your support now more than ever. We need to defend public engagement and public advocacy – the cornerstones of our democratic system – from the Burlington Airpark’s SLAPP suit, so that this type of legal coercion does not silence the citizens of Burlington.